Balancing artificial intelligence, ethics and the constitution | India

AAs emerging technologies proliferate, the regulation of artificial intelligence (AI) has become a pressing concern for democracies committed to safeguarding fundamental rights. In India, the regulatory landscape for AI is constantly evolving in an attempt to keep pace with the rapid growth of the technology. As various frameworks attempt to govern AI, these advances must be weighed against fundamental legal ethics and constitutional values. The challenge is to ensure that AI evolution enhances, not undermines, the fundamental rights that anchor Indian democracy.

Unlike the European Union, which introduced comprehensive legislation across the EU AI RegulationIndia does not have a law governing AI. However, the Ministry of Electronics and Information Technology (MeitY) has been proactive in issue regular opinionswhich sets regulatory benchmarks for the use of AI in various sectors.

In the current regulatory framework, these are the main laws and guidelines governing AI. The Information Technology Act, 2000 provides the foundation of law dealing with technology and issues of data protection, privacy and cybersecurity. The Digital Personal Data Protection Act (DPDP) 2023 regulates the processing of personal data, with an emphasis on privacy. AI technologies that collect or process personal data are subject to its provisions. The Copyright Act, 1957, the Trade Marks Act, 1999 and the Patents Act, 1970 constitute the backbone of the Indian intellectual property framework, particularly relevant in the context of inventions or works generated by AI. These laws deny AI the status of a legal person, meaning that it has no ownership rights over its creations.

In March 2023, MeitY announced that the Information Technology Act, 2000 would be replaced by the Digital India Act. The proposed law is expected to address key issues such as online safety, trust, accountability, an open internet and the regulation of emerging technologies such as AI and blockchain. However, the legislation remains at the consultation stage.

Building on this broader regulatory approach, on March 15, 2024, the MeitY issued an opinion clarify the requirements to be respected during any AI model deployment. The circular asked all intermediaries to ensure that there was no bias or discrimination in their models, that labeling requirements for untested or under-development models were respected and that consequent changes on intermediary platforms were included in their conditions and services.

As AI continues to rapidly evolve, so does the constitution. The principle of living constitutionalism, in which the interpretation of the constitution is dynamic and adapts over time to deal with unforeseen problems, was emphasized in Justice KS Puttaswamy (retd) and Anr v Union of India. As AI becomes more integrated into society, constitutional challenges regarding equality, freedom of speech, and the right to life are likely to emerge.

In the Puttaswamy case, the Supreme Court recognized the right to privacy as a fundamental right to life and personal liberty under Article 21. AI systems, which often rely on extensive collection data, raise significant concerns about the processing and protection of personal data. The lack of specific regulation on AI intensifies these concerns, increasing the risk of privacy violations. The MeitY, in its opinion, requires that AI models be free of bias or discrimination when used. However, historical biases embedded in data can lead to systemic discrimination in AI applications. This will raise concerns in areas such as recruiting, law enforcement and health care, where biased algorithms can disproportionately harm marginalized communities. This puts the constitutional right to equality under Article 14 at risk if AI systems perpetuate such biases. Additionally, because AI systems act autonomously, questions of liability remain unresolved under the country’s current legal framework. This would raise concerns in the handling of constitutional offenses raising grievances arising from situations in which the government or its agents rely on AI systems. India’s approach to AI regulation is evolving and aims to balance innovation with ethical considerations and societal well-being. As technology companies push the boundaries of what is possible, they must be careful and guided by constitutional values ​​and ethical principles.

Varun Pathak is an Associate, Yash Karunakaran is a Senior Associate and Vishwajeet Deshmukh is an Associate at Shardul Amarchand Mangaldas & Co.